SC Ruling Tramples FOIA Protections; Favors Corporate Secrecy

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Supreme Court ruling deals a major setback to freedom of information advocates, allowing the government to withhold any information considered ‘confidential’ by the submitting entity. In a 6-3 majority decision, this Monday, the judges ruled in favor of the broadest definition of confidentiality while eroding the protections FOIA secrecy exemptions previously guaranteed. The U.S. Supreme Court followed nine years of litigation that pitted industry lobbyists, government agencies along with the Chamber of Commerce against a Sioux Falls, South Dakota newspaper.

In 2011, Argus Leader, a South Dakota newspaper, had a reporter working on a story about potential food stamp fraud encompassing access to edibles part of the Program. Supplemental Nutritional Assistance Program or SNAP is administered locally by retailers in collaboration with the government. At some point in his research, the reporter reached out to USDA (United Stated Department of Agriculture), the federal body governing SNAP, for some facts about the Program. The reporter was denied the FOIA request with USDA arguing it was confidential because it pertained to business. And thus began the relentless campaign to curb our right to information; the Argus Leader sued and won but it did not get the information, The Food Marketing Group, a retailer industry group took the case through appellate court, and lost. It was time for the big guns, so, Chamber of Commerce joined the industry consortium to escalate this fight to Supreme Court.

The Court, after hearing the argument in April, issued a ruling against the Argus Leader. To be clear, the FOIA has always allowed private government contractors to claim an exemption on confidentiality grounds, but – under a precedent set in 1974 – contractors had to prove that such a disclosure would cause competitive harm, and likely financial loss.

Revising that 45 – year old precedent, the Supreme Court ruled to bring the bar substantially low: going forward, contractors can keep any “commercial and financial information” they give to the government secret at their discretion, as long as their was such “assurance” from the government. As Justice Stephen Breyer wrote in his dissent, the ruling establishes certain information as “confidential” not because it is legitimately sensitive, but because those who possess it want to keep it that way. The ruling, Breyer fears, “will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”

[The ruling] “will deprive the public of information for reasons no better than convenience, skittishness, or bureaucratic inertia.”

— Justice Stephen breyer

United States Supreme Court – Class of 2018

NOTES FROM THE SUPREME COURT GALLERY

Justice Neil Gorsuch seconded the trade association representing grocery retailers, stating that FOIA does not require disclosure of such information. Gorsuch writes, “… at least where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is ‘confidential'”. Therefore, the citizen has no freedom to access, or right to that information.

Gorsuch said that the court cannot “expand”
the exemption beyond what its “terms permit.”

The dissenters on the bench objected, saying that there should be a requirement that the disclosure of requisite information would cause “harm.” Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, wrote that in order for the information to be exempted it must also “cause genuine harm to the owner’s economic or business interests.”

“We’re disappointed in today’s outcome, obviously,” said Cory Myers, Editor of Argus Leader and FOIA advocate. He continued, “This is a massive blow to the public’s right to know how its tax dollars are being spent, and who is benefiting. Regardless, we will continue to fight for government openness and transparency, as always.” Echoes of his Justice Breyer’s concerns could be heard even as one left the Court gallery. Our freedoms and rights ours to safeguard, and we must heed these concern before an alliance of expansive government and industry shouts us down.